Defining Crimes Against Humanity in the Rome Statute of the International Criminal Court

In Part I, this Article surveys the evolution of crimes against humanity. This part reviews interpretations of crimes against humanity by post-World War II tribunals, national courts, and the International Law Commission ("ILC"). Part II examines the formulation of crimes against humanity in the statutes that established the International Criminal Tribunals for the former Yugoslavia ("ICTY") and the International Criminal Tribunal for Rwanda ("ICTR"). It also looks at how the reports issued in connection with the ICTY statute and the case law from the ICTY dealt with crimes against humanity. Part III draws some preliminary conclusions regarding the status of crimes against humanity in international law in the period directly preceding the Rome Conference and analyzes the relative authority of the various sources of law discussed in Parts I and II. In Part IV, this Article surveys the issues raised by government delegates regarding crimes against humanity during the negotiations on the draft statute for an ICC from 1994 to 1998. Finally, Part V examines the debates on crimes against humanity that took place during the Rome Conference and analyzes the definition of crimes against humanity adopted in the Rome Statute.

Defining Crimes Against Humanity in the Rome Statute of the International Criminal Court

FORDHAMINTERNATIONAL LAWJOURNAL
Fordham International Law Journal
-
1998
Article 5
Copyright c 1998 by the authors. Fordham International Law Journal is produced by The
Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
Defining Crimes Against Humanity in the
Rome Statute of the International Criminal
Court
Phylilis Hwang
In Part I, this Article surveys the evolution of crimes against humanity. This part reviews
interpretations of crimes against humanity by post-World War II tribunals, national courts, and
the International Law Commission (”ILC”). Part II examines the formulation of crimes against
humanity in the statutes that established the International Criminal Tribunals for the former
Yugoslavia (”ICTY”) and the International Criminal Tribunal for Rwanda (”ICTR”). It also looks at
how the reports issued in connection with the ICTY statute and the case law from the ICTY dealt
with crimes against humanity. Part III draws some preliminary conclusions regarding the status
of crimes against humanity in international law in the period directly preceding the Rome
Conference and analyzes the relative authority of the various sources of law discussed in Parts I and II.
In Part IV, this Article surveys the issues raised by government delegates regarding crimes against
humanity during the negotiations on the draft statute for an ICC from 1994 to 1998. Finally, Part
V examines the debates on crimes against humanity that took place during the Rome Conference
and analyzes the definition of crimes against humanity adopted in the Rome Statute.
DEFINING CRIMES AGAINST HUMANITY IN
THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT
Phyllis Hwan*
INTRODUCTION
Despite the Nuremberg and Tokyo tribunals at the end of
World War 1I, the promise of ending impunity for egregious
violations of human rights and humanitarian law has remained
unfulfilled for the past half century. As a result, individuals who
have transformed previously unimaginable atrocities into
recurring news headlines have escaped justice for their crimes. On
July 17, 1998, the United Nations Diplomatic Conference of
Plenipotentiaries on the Establishment of the International
Criminal Court ("Rome Conference") adopted the Rome Statute
of the International Criminal Court ("Rome Statute").' The
International Criminal Court ("ICC") will have jurisdiction over
genocide, war crimes, and crimes against humanity when
national courts are unable or unwilling to prosecute such crimes.2
This Article examines the definition of crimes against humanity
in Article 7 of the Rome Statute3 and its consistency with
contemporary international law. It confines its analysis to the
opening paragraph of the definition, the "chapeau," which sets out
the essential elements of crimes against humanity. Although
Article 7 also contains significant developments regarding the
enumerated acts that may constitute crimes against humanity, and
* B.A., Brown University; J.D., Columbia University. The author is currently
counsel at the Taiwan Association for Human Rights based in Taipei, Taiwan. She previously
served as counsel on the International Criminal Court campaign at Human Rights
Watch. The views expressed herein are solely those of the author and do not reflect the
views of either organization. The author is grateful for the valuable comments of Beth
Van Schaack. Comments may be directed to the author by e-mail at
.
1. UNITED NATIONS, DIPLOMATIC CONFERENCE OF PLENIPOTENTARIES ON THE
ESTABLISHMENT OF AN INT'L CRIMINAL COURT, ROME STATUTE OF THE INTERNATIONAL CRIMINAL
COURT, U.N. Doc. A/Conf.183/9 (1998)
(adopted by United Nations on July 17, 1998)
(visited Dec. 22, 1998) <http://www.un.org/icc> [hereinafter ROME STATUTE].
2. Id. arts. 5, 12, 17 (setting forth crimes within jurisdiction of International
Criminal Court ("ICC") in Article 5, preconditions to exercise of jurisdiction in Article 12,
and issues of admissibility in Article 17).
3. Id. art. 7.
the definitions of such acts,4 a discussion of these issues is
beyond the scope of this Article.
In Part I, this Article surveys the evolution of crimes against
humanity. This part reviews interpretations of crimes against
humanity by post-World War II tribunals, national courts, and
the International Law Commission ("ILC"). 5 Part II examines
the formulation of crimes against humanity in the statutes that
established the International Criminal Tribunals for the former
Yugoslavia 6 ("ICTY") and the International Criminal Tribunal
for Rwanda ("ICTR") .7 It also looks at how the reports issued in
connection with the ICTY statute and the case law from the ICTY
dealt with crimes against humanity. Part III draws some
preliminary conclusions regarding the status of crimes against humanity
in international law in the period directly preceding the Rome
Conference and analyzes the relative authority of the various
sources of law discussed in Parts I and 11. In Part IV, this Article
surveys the issues raised by government delegates regarding
crimes against humanity during the negotiations on the draft
statute for an ICC from 1994 to 1998. Finally, Part V examines at
the debates on crimes against humanity that took place during
the Rome Conference and analyzes the definition of crimes
against humanity adopted in the Rome Statute.
I. EVOLUTION OF CRIMES AGAINST HUMANITY
A. Developments Priorto World War IPs
The concept of crimes against humanity traces its origins to
1998]
the preamble of the 1907 Hague Convention Concerning the
Laws and Customs of War on Land, in which the Martens Clause
makes reference to the "laws of humanity."9 This language was
echoed in a 1915 Allied condemnation of the Armenian
genocide in Turkey.1 0 Following World War I, an investigatory
commission established by the Paris Peace Conference also invoked
the laws of humanity; however, the Treaty of Versailles1 1 and the
Treaty of Lausanne 2 declined to prosecute crimes against
hu3
manity.'
On August 8, 1945, the four major Allied powers in World
War II signed the Agreement for the Prosecution and
Punishment of Major War Criminals of the European Axis ("London
Agreement") .14 The Charter of the International Military
Tribunal15 ("Nuremberg Charter"), annexed to the London
Agreement, contained the first codification of crimes against
humanity. 16 Article 6 of the Nuremberg Charter, entitled the
'Jurisdiction and General Principles" of the Nuremberg Tribunal,
defined crimes against humanity in paragraph (c) as follows:
Crimes Against Humanity: namely, murder, extermination,
M. CHERIF BASsIOUNI, CRIMES AGAINST HuMANrrv IN INTERNATIONAL CRIMINAL LAW
(1992); Matthew Lippman, Crimes Against Humanity, 17 B.C. THIRD WORLD L.J. 171,
17273 (1997).
enslavement, deportation, and other inhumane acts
committed against any civilian population, before or during the war,
or persecutions on political, racial or religious grounds in
execution of or in connection with any crime within the
jurisdiction of the Tribunal, whether or not in violation of the
17
domestic law of the country where perpetrated.
Because crimes against humanity were prosecuted along with
other crimes, the Nuremberg Tribunal often failed to clarify the
content or the scope of crimes against humanity, in particular,
the distinction between this crime and war crimes or the
meaning of key terms such as "any civilian population."'" The Tokyo
Tribunal, established by the Charter of the International Military
Tribunal for the Far East19 ("Tokyo Charter"), did not provide
any further guidance on crimes against humanity because it
primarily prosecuted crimes against peace.20 The definition on
crimes against humanity in the Tokyo Charter was substantially
similar to the one found in the Nuremberg Charter. 2 1
Allied Control Council Law No. 10 ("Control Council Law
No. 10") governed the prosecution of war criminals within each
of the Allied occupation zones in Germany. 22 The definition of
crimes against humanity in Article 11(c) of Control Council Law
17. Nurnberg Charter, supra note 15, art. 6, 59 Stat. at 1551, 82 U.N.T.S. at 283.
18. Leila Sadat Wexler, The Interpretationof the NurembergPrinciplesby the French Court
of Cassation: From Touvier to Barbieand Back Again, 32 COLUM. J. TRANSNAT'L L. 289, 310
(1994). Even in the cases ofJulius Streicher and Baldur von Schirach, who were only
convicted of crimes against humanity, "[tihe Tribunal's discussion of the charges ...
are essentially factual and do not in any way explain how exactly [their] acts violated
Article 6(c)." Id. at 308.
19. Charter of the International Military Tribunal for the Far East, Special
Proclamation by the Supreme Commander for the Allied Powers at Tokyo, Jan. 19, 1946,
T.I.A.S. No. 1589, reprintedin 4 TREATIES AND OTHER INT'L AGREEMENTS OF THE UNITED
STATES OF AM. 27 (1946).
20. Lippman, supra note 8, at 202.
21. Two notable differences in the Charter of the International Military Tribunal
for the Far East ("Tokyo Charter") definition were the deletion of persecution on
religious grounds and the addition of a clause on the bases for responsibility, which stated
that "[1] eaders, organizers, instigators and accomplices participating in the formulation
or execution of a common plan or conspiracy to commit any of the foregoing crimes
are responsible for all acts performed by any person in execution of such plan." See
BASSIOUNI, supra note 8, at 34 (quoting Tokyo Charter).
22. See Allied Control Council Law No. 10, Punishment of Persons Guilty of War
Crimes, Crimes Against Peace and Against Humanity, Dec. 20, 1945, Official Gazette of
the Control Council for Germany, No. 3, Berlin (Jan. 31, 1946), reprintedin BASSIOUNI,
supra note 8, at 590 (defining crimes against humanity as "[a] trocities and offenses,
including but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture, rape, or other inhumane acts committed against any civilian
populadelicts.
No. 10 removed the requirement of a connection with either
crimes against peace or war crimes.2 3 This modification enabled
U.S. tribunals to de-link crimes against humanity from armed
conflict in United States v. Josef Altstoetter24 (the 'Justice Case")
and United States v. Otto Ohlendorf (the "Einsatzgrupen Case") .25
Another significant development that emerged from these
tribunals was the restriction of the definition of crimes against
humanity to the "systematic commission of severe, State-sponsored
2 6
Following the judgments issued by the Nuremberg, Tokyo,
and Control Council Law No. 10 tribunals, subsequent
international instruments affirmed and expanded upon the definition
of crimes against humanity. 27 The Convention on the
Prevention and Punishment of the Crime of Genocide 28 ("Genocide
Convention") and the Convention on the Non-Applicability of
Statutory Limitations to War Crimes and Crimes Against
Humanity29 ("Convention on Statutory Limitations") explicitly stated
the principle that crimes against humanity do not require a
tion, or persecutions on political, racial or religious grounds whether or not in violation
of the domestic laws of the country where perpetrated.").
23. Id. art. 111(c)
24. United States v. Josef Altstoetter, reprinted in III TRIALS OF WAR CRIMINALS
BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL CONCIL LAw No. 10, at
954 (1951)
25. United States v. Otto Ohlendorf, reprinted in IV TRIALS OF WAR CRIMINALS
BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL CONCIL LAW No. 10, at
411 (1950)
26. Lippman, supra note 8, at 212.
27. Such instruments included the Affirmation of the Principles of International
Law Recognized by the Charter of the Nuremberg Tribunal: the Report of the Sixth
Committee, U.N. GAOR, 1st Sess., pt. 2, 55th plen. mtg. at 1144, U.N. Doc. A/236
(1946) (also appears as G.A. Res. 95, U.N. Doc. A/64/Add.1, at 188 (1946)); the
Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78
U.N.T.S. 277 [hereinafter Genocide Convention]; the Convention on the
Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, Nov. 26,
1968, G.A. Res. 2391, U.N. GAOR, 23rd Sess., Supp. No. 18, at 40, U.N. Doc. A/7218
(1968) [hereinafter Convention on Statutory Limitations]; the International
Convention on the Suppression and Punishment of the Crime of Apartheid, Nov. 30, 1973,
G.A. Res. 3068 (XXVIII), U.N. GAOR, 28th Sess., Supp. No. 30, at 75, U.N. Doc. A/
9030 (1973) [hereinafter Apartheid Convention]; and the Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984,
G.A. Res. 39/46, U.N. GAOR, 39th Sess. Supp. No. 51, at 197, U.N. Doc. A/39/51
(1984).
28. Genocide Convention, supra note 27.
29. Convention on Statutory Limitations, supra note 27.
nexus with armed conflict. 30
In 1947, the United Nations General Assembly created the
ILC to codify international law. 1 One of the ILC's first tasks was
to formulate the "principles of international law recognized in
the Charter of the Nuremberg Tribunal and in the Judgment of
the Tribunal." 2 In its report on the "Formulation of the
Nuremberg Principles,""3
("1950 Formation of the Nuremberg
Principles")
the ILC based its comments on the following definition of
crimes against humanity: "murder, extermination, enslavement,
deportation and other inhuman acts done against any civilian
population, or persecutions on political, racial or religious
grounds, when such acts are done or such persecutions are
carried on in execution of or in connection with any crime against
peace or any war crime. '31 4 The omission of the phrase "before
or during war," used in Article 6(c) of the Nuremberg Charter,3 5
was due to the ILC's view that it only referred to a "particular
war, the war of 1939."36 The ILC, however, warned that the
deletion did not signify that "crimes against humanity can be
committed only during a war, since such crimes may take place also
before a war in connection with crimes against peace. 3 v
The ILC also observed that Article 6(c) had contained two
types of crimes against humanity, "murder ... and other
inhuman acts" and "persecution on political, racial, or religious
grounds.""8 This categorization makes it clear that the ILC
viewed the phrase "on political, racial or religious grounds" as
clarifying the bases of persecution, rather than imposing a
requirement of a discriminatory motive for inhuman acts. This
interpretation is also supported by the 1949 Memorandum of the
Secretary-General on the Charter and Judgment of the
Nuremberg Tribunal, which stated:
It might perhaps be argued that the phrase "on political,
racial or religious grounds" refers not only to persecutions but
also to the first type of crimes against humanity. The British
Chief Prosecutor possibly held that opinion as he spoke of
"murder, extermination, enslavement, persecution on
political racial or religious grounds." This interpretation,
howeavnedr,stsielle mlesss hbayrdthlye tForebnechwaterrxatn.3t9ed by, the English wording
Finally, in interpreting the term "any civilian population," the
ILC focused on the word "any" to conclude that the term would
extend the application of the definition to acts committed by the
perpetrator against his own population.
In 1951, the ILC adopted the first Draft Code of Offenses
against the Peace and Security of Mankind4"
("1951 Draft
Code")
after consideration of government submissions and
reports by Special Rapporteur Mr. Jean Spiropoulos. Crimes
against humanity were defined in Article 2(10) of the 1951 Draft
Code as:
"Inhuman acts by the authorities of a State or by private
individuals against any civilian population, such as mass murder, or
extermination or enslavement, or deportation, or persecutions on
political, racial, religious or cultural grounds, when such acts are
committed in execution of or in connection with the offenses
defined in this article. 41
Instead of requiring a nexus with either war crimes or crimes
against peace, this formulation required crimes against
humanity to be connected with "the offenses defined in this article."4 2
Among the crimes enumerated in Article 2 of the 1951 Draft
Code was genocide, and the Genocide Convention of 1948 had
already recognized that genocide could be committed in time of
peace.4 ' Thus, the 1951 Draft Code definition of crimes against
humanity continued to move away from the requirement of a
nexus with armed conflict. 44 Another development in this
defipnritivioantewiansdiitvsideuxapllsicmitaryeccoogmnmitiiot ncrtihmaetsboagthainSstattehuamutahnoirtyit.i4e5s and
In 1954, the ILC amended the definition of crimes against
humanity to read: "Inhuman acts such as murder,
extermination, enslavement, deportation or persecution, committed
against any civilian population on social, political, racial,
religious or cultural grounds by the authorities of a State or by
private individuals acting at the instigation or with the toleration of
such authorities. '46 The revision eliminates altogether the
requirement that crimes against humanity be committed in
connection with another crime. As explained by the ILC, this
revision was done with the intention to "enlarge the scope of the
paragraph."47 On the other hand, the application of the
definition was narrowed, at least with respect to private actors, by the
new requirement that private individuals act "at the instigation
or toleration" of State authorities.
Rather than maintaining the two categories of crimes
against humanity, as set forth in the ILC's 1950 Formulation of
Nuremberg Principles, the 1954 formulation collapses both
persecution and other crimes-murder, extermination, enslavement,
and deportation-under the single category of "inhuman acts. 48
Furthermore, the discriminatory grounds that had immediately
followed the word "persecution" in earlier versions were moved
to the latter part of the definition. 49 Their new placement
suggests that it may be necessary to establish that the other inhuman
acts, and notjust persecution, were committed on discriminatory
grounds. The ILC, however, did not indicate its intent to
impose this additional requirement nor did it offer any explanation
for these changes.
Following the submission of the '1954 Draft Code of
Offenses against the Peace and Security of Mankind
("1954 Draft
Code")
, further discussion on this work was suspended for
several decades because the "Cold War had made the entire
exercise highly controversial. 5 ° In 1981, the Allied General
Assembly requested the ILC to return to its work on the Draft Code of
Offenses against the Peace and Security of Mankind 5 ' ("Draft
Code of Offences"), which in 1987 was renamed the Draft Code
of Crimes Against the Peace and Security of Mankind ("1991
Draft Code").52 The Draft Code that was finally adopted by the
ILC in 1991 defined twelve crimes, but did not contain a specific
article on crimes against humanity." Article 21, defining
"systematic or mass violations of human rights," bore the closest
resemblance to this crime.5 4 The definition of "systematic or mass
violations of human rights," however, differs from the 1954 Draft
Code definition of crimes against humanity in a number of
significant ways.5 5 Because the ILC did not indicate that this crime
was intended as a substitute for crimes against humanity, its
sig49. Id.
50. Report of the InternationalLaw Commission, U.N. GAOR, 46th Sess., Supp. No. 10,
at 238, U.N. Doc. A/46/10 (1991) [hereinafter 1991 ILC Report].
51. G.A. Res. 106, U.N. GAOR, 36th Sess. (1981).
52. 1991 ILC Report, supra note 50.
53. Id.
54. Id. Article 21 of the Draft Code of Crimes Against the Peace and Security of
Mankind ("1991 Draft Code") on "systematic or mass violations of human rights" states
that "[a]n individual who commits or orders the commission of any of the following
violations of human rights... in a systematic manner or on a mass scale;... shall, on
conviction thereof, be sentenced .... Id. art. 21.
55. The "systematic and mass scale" criteria are new, reflecting interpretations of
crimes against humanity by national courts in the intervening years. There is no
examination of whether the individual is acting in an official or private capacity, and thus,
even in the case of the latter, there is no requirement that such actions were taken at
the instigation of or with the tolerance of State authorities. Finally, the definition does
not address whether this crime may be committed in time of peace, nor is there any
reference to the relevant group of protected persons, the civilian population.
nificance in reflecting the development of crimes against
humanity in international law is limited.
After receiving government observations on the 1991 Draft
Code and examining further reports by the Special Rapporteur
Mr. Doudou Thiam, the ILC adopted another Draft Code of
Crimes in 1996 ("1996 Draft Code"). 56 The 1996 Draft Code
contained a shorter list of enumerated crimes, but included
crimes against humanity this time. The chapeau to Article 18
provided that "[a] crime against humanity means any of the
following acts, when committed in a systematic manner or on a
large scale and instigated or directed by a Government or by any
organization or group."57
The ILC affirmed that crimes against humanity do not
require a nexus with armed conflict. The ILC cited Control
Council Law No. 10, the Genocide Convention, the Statute for the
International Criminal Tribunal for the former Yugoslavia58
("ICTY Statute"), the Statute for the International Criminal
Tribunal for Rwanda59 ("ICTR Statute"), and the ICTY's case law as
standing for the proposition that crimes against humanity may
be committed in peace time.6 °
The 1996 Draft Codes's definition also imposed the two
"general conditions" for an act to reach the level of a crime
against humanity.6' First, the act must be committed in a
"systematic manner or on a large scale. ' 62 While conceding that
these conditions were not found in the Nuremberg Charter, the
ILC observed that the Nuremberg Tribunal took note of these
elements when determining whether certain inhumane acts rose
to the level of crimes against humanity definition and that the
1996 Draft Code's definition is intended to reflect "subsequent
developments in international law since Nuremberg.'' 6' The ILC
also clarified that these conditions existed in the alternative.
"Consequently, an act could constitute a crime against humanity
56. Report of the InternationalLaw Commission, U.N. GAOR, 48th Sess., Supp. No. 10,
45, U.N. Doc. A/51/10 (1996) [hereinafter 1996 ILC Report].
57. Id. art. 18.
58. ICTY Statute, supra note 6.
59. ICTR Statute, supra note 7.
60. 1996 ILC Report, supra note 56, cmt. to art. 18, 6.
61. Id. 3.
62. Id.
63. Id.
1998]
if either of these conditions is met. "64
For an act to be systematic, it must be committed "pursuant
to a preconceived plan or policy. The implementation of this
plan or policy could result in the repeated or continuous
commission of inhumane acts."65 This requirement was imposed to
avoid the prosecution of a "random act" as a crime against
humanity." On the other hand, the term "large scale" referred to
situations "involving a multiplicity of victims, for example, as a
result of the cumulative effect of a series of inhumane acts or the
singular effect of an inhumane act of extraordinary
magnitude."6 7 Here, this requirement aimed to exclude an "isolated
inhumane act committed by a perpetrator acting on his own
initiative and directed against a single victim."6 8
The ILC also required a second condition, that crimes
against humanity be "instigated or directed by a Government or
by any organization or group."69 While the ILC discussed the
need to exclude isolated acts by an individual, it was also
concerned with distinguishing ordinary criminal conduct from a
crime against humanity, which is a crime of an international
nature. Thus, the ILC explained that it is this second element that
"gives the act its great dimension. "70
The 1996 Draft Code required more active involvement on
the part of the relevant authorities than the 1954 Draft Code,
which only required State instigation or tolerance of the act.
The 1996 Draft Code's definition, however, encompassed acts
instigated or directed not only by State authorities, but also by "any
organization or group. "71 This definition would enable groups
that exercise defacto control over a territory, without official
recognition as the legitimate state authority, to be held responsible
for crimes against humanity. Indeed, the ILC's failure to give
any guidelines on what constitutes an "organization" or a
"group," except to say that they "may or may not be affiliated
with a Government, "72 suggests that the definition may even
apply to criminal organizations or corporations.
Finally, the 1996 Draft Code's definition made no reference
to "any civilian population" or to a general requirement of the
discriminatory motive. Following the 1954 Draft Code's
formulation, it listed persecution as among the inhumane acts. The
grounds for discrimination, however, clearly apply to acts of
persecution only.
In sum, after the Nuremberg Judgment, the ILC quickly
moved to reject the need for a nexus between crimes against
humanity and armed conflict and in 1954, eliminated altogether
the need for crimes against humanity to be committed with any
other crime. With regard to the requirement of a discriminatory
motive, the ILC's early interpretation of the Nuremberg Charter
strongly suggested that the grounds for discrimination apply
only to acts of persecution. The ILC's 1954 formulation of
crimes against humanity in the 1954 Draft Code may suggest that
other inhumane acts must also be committed on discriminatory
grounds, but neither the ILC's comments nor the subsequent
definition in 1996 lend support to this argument.
All ILC drafts of crimes against humanity, save the 1996
Yersion, identified "any civilian population" as the relevant group of
protected persons.7" The only time that the ILC interpreted this
term, however, was in 1951, to explain that crimes against
humanity could encompass acts committed by the perpetrator
against his own population."4
The requirement of State participation in crimes against
humanity, at first explicitly rejected in the 1951 Draft Code's
definition,75 was incorporated in the 1954 Draft Code's revision.76
The 1996 Draft Code's definition required crimes against
humanity to be instigated or directed by authorities, rather than
instigated or merely tolerated, as provided in the 1954 Draft
Code. The 1996 Draft Code, however, broadened the term
"authorities" to include organizations and groups in addition to
governments.
Finally, the 1996 Draft Code required crimes against
hu73. See 1951 ILC Draft Code, supra note 40; 1954 ILC Draft Code, supra note 46. But
see 1991 ILC Report, supra note 50.
74. See 1951 ILC Draft Code, supra note 40.
75. Id.
76. 1954 ILC Draft Code, supra note 46.
manity to be committed in a systematic manner or on a large
scale.77 Inquiry into systemacity involves an examination of
whether there is a "preconceived plan or policy," while a
"multiplicity of victims" is required to establish a large scale violation.78
D. Domestic Prosecution of Crimes Against Humanity
According to the principle of universal jurisdiction, certain
crimes are so offensive to the universal community as a whole
that any national court may assert jurisdiction over their
perpetrators without relying on the usual bases of
jurisdiction-territoriality,79 nationality, 0 or passive personality.8 '
Crimes against humanity are recognized as being among the
crimes over which universal jurisdiction exists.8 2 Since the
Nuremberg Tribunal, several domestic courts have undertaken
prosecutions of crimes against humanity, invoking either the
traditional bases for jurisdiction or the principle of universal
jurisdiction. 3 This section focuses on interpretations of crimes
against humanity by domestic courts in the past decade, as these
interpretations will have particular relevance for understanding
the state of international law prior to the Rome Conference.
1. France: Prosecution of Klaus Barbie
In February 1982, the public prosecutor of Lyon charged
Klaus Barbie, a former head of the Gestapo based in Lyon, with
crimes against humanity.84 Barbie had previously been
convicted, in absentia, for war crimes, but this time he was expelled
from his refuge in Bolivia and forced to stand trial in France.85
Applying the Nuremberg Charter definition of crimes
77. 1996 ILC Report, supra note 56.
78. Id.
79. Territorial jurisdiction exists when the offense is committed on the state's
territory.
against humanity, 6 the Indicting Chamber of the Court of
Appeals of Lyon on October 4, 1985, declined to charge Barbie for
arresting and torturing to death a Jewish member of the
Resistance because it was unclear whether his victim had been selected
for being Jewish or for participating in the resistance. 7 Under
the appellate court's strict interpretation of the term "any
civilian population," members of the Resistance could not be
considered civilians."8 While rejecting the lower court's ruling, the
Court of Cassation's interpretation, in turn, introduced new
obstacles to the prosecution of crimes against humanity. In its
opinion of December 20, 1985, the Court of Cassation defined
crimes against humanity as:
the inhumane acts and the persecutions which, in the name
of a State practicing a hegemonic political ideology, have
been committed in a systematic fashion, not only against
persons because they belong to a racial or religious group, but
also against the adversaries of this [State] policy, whatever the
form of their opposition.89
This interpretation emphasizes three elements of crimes
against humanity. The first element is that the crimes must be
committed in a systematic manner.9 ° The second element
requires that the perpetrator must act with a discriminatory
motive, based on the race, religion, or ideology of the victim.91 The
Court of Cassation's final element requires that crimes against
humanity be committed in accordance with a State's
"hegemonic political ideology."92
In affirming Barbie's conviction on June 3, 1988, the Court
of Cassation further held that:
[t]he fact that the accused.., took part, in perpetrating that
crime, in the execution of a common plan to bring about the
deportation or extermination of the civilian population
during the war or persecutions on political, racial or religious
grounds, constitutes not a separate offense or an aggravating
1998]
circumstance but . . . an essential element of the crime
against humanity consisting in the fact that the acts ... were
performed in a systematic manner in the name of a State
practicing ... a policy of ideological supremacy.9 3
The additional requirement of a "common plan" has been
criticized as a misinterpretation of Article 6 of the Nuremberg
Charter, which included this language to provide for the criminal
liability of conspirators, but did not intend to add this as a
substantive element of the definition of crimes against humanity.9 4
2. France: Prosecution of Paul Touvier
Paul Touvier was a French officer in the Milice (Militia) of
the Vichy regime. Tried in absentia for treason, Touvier
received two death sentences in 1946 and 1947 and a presidential
pardon in 1971." Shortly thereafter, several individuals filed
charges of crimes against humanity against Touvier.96
Investigation into the Touvier case, however, was postponed until 1979,
when the Minister of Foreign Affairs affirmed the
imprescriptability of crimes against hurnanity.9 7 The Indicting
Chamber of the Court of Appeals in Paris dismissed all eleven
charges against Touvier, citing lack of evidence.9 8 With regard
to Touvier's involvement in the killing of seven Jews in Rillieux,
the appellate court held that Touvier lacked the requisite
intent.9 9 It ruled that an individual:
cannot be held to have committed a crime against humanity
unless it is also established that he had a specific motivation
to take part in the execution of a common plan by
committing in a systematic manner inhuman acts or persecutions in
tshueprenmaamcey. 10o0f a State practicing a policy of ideological
Relying on the Barbiejudgments of 1985 and 1988, the Court of
Appeals applied three elements of crimes against humanity
identified therein: 1) the systematic nature of the crimes; 2) the
perpetrator's participation in a common plan; and 3) the
perpetrator's intent to carry out a State policy of political hegemony. 10 1
With regard to the last element, the Court of Appeals, however,
refused to rule that the Vichy regime practiced a hegemonic
political ideology.10 2 In reversing the lower court's decision
regarding the Rillieux massacre, 10 3 the Court of Cassation held
that because Touvier proceeded on the basis of orders from the
Gestapo, which did practice a hegemonic ideology, his acts fell
within the definition of crimes against humanity. 10 4
3. Canada: Prosecution of Imre Finta
Imre Finta served in the Royal Hungarian Gendarmerie in
1944 and headed the investigative unit at Szeged, Hungary,
where approximately 9,000 Jews were confined, robbed, and
deported to concentration camps in Auschwitz and Strasshof.'0 5 In
1988, Finta was charged with war crimes and crimes against
humanity.10 6 Ajury acquitted Finta of all charges, and this acquittal
was upheld by both the Ontario Court of Appeal and the
Supreme Court of Canada. 10 7 Among the issues examined by
the Supreme Court was whether the trial judge had properly
instructed the jury on the requisite mens rea for crimes against
humanity.'0 8
In distinguishing international crimes from domestic
crimes, the Supreme Court stated that "with respect to crimes
against humanity, the additional element is that the inhumane
acts were based on discrimination against or the persecution of
an identifiable group of people." 10 9 The Supreme Court further
ruled that:
[t]he mental element required to be proven to constitute a
crime against humanity is that the accused was aware of or
willfully blind to the facts or circumstances which would bring
his or her acts within the definition of a crime against
humanity. However, it would not be necessary to establish that the
accused knew that his or her actions were inhumane. For
example, if the jury was satisfied that Finta was aware of the
conditions within the boxcars [in which the Jews were deported],
that would be sufficient to convict him of crimes against
humanity even though he did not know that his actions in
loading the people into those boxcars were inhumane. 110
Finally, the Supreme Court also held that the trial judge
properly instructed to jury to examine whether Finta "knew or
was aware that he was assisting in a policy of persecution."111
While noting that the element of State policy of persecution or
discrimination was not found in the Canadian Criminal Code,
the Supreme Court held that this was a "pre-requisite legal
element of crimes against humanity."' 1 2
4. Cases Viewed Together
In sum, the decision by the French Court of Cassation in
Barbie added a number of new elements to the definition of
crimes against humanity. Contrary to the ILC's 1950
Formulation of Nuremberg Principles," 3 the French Court of Cassation
ruled that the perpetrator of a crimes against humanity must be
motivated by discriminatory intent based on political, racial, or
religious grounds. 4 Even if such an interpretation were based
on the language and structure of the ILC's 1954 Draft Code, it
109. Finta, [1994] 1 S.C.R. at 813.
110. Id. at 820; see Bellow & Cofder, supranote 107, at 472 (arguing that trial judge
erred in instructing jury to ask: "Does he know it is an inhumane act?").
11. Regina v. Finta, [1994] S.C.R. 701, 822-23 (Can.).
112. Id.
113. 1950 ILC Report, supra note 33.
114. Barbie,J.C.P. 1983, II, G, No. 20.
FORDHAMINTERNATIONAL LAWJOURINAL
still deviates from the ILC definition by omitting social and
cultural grounds as possible bases for discrimination. The Supreme
Court of Canada also required a discriminatory motive, even
though it is not explicitly included in Section 7(3.76) of the
Canadian Criminal Code. 115
The requirement that crimes against humanity be
committed in a systematic manner is not entirely new because this had
been raised in the Justice Case decided under Control Council
Law No. 10. The ILC, however, had never recognized this
element in its reports or Draft Codes. Nevertheless, the French
courts in the Barbie and Touvier judgments fully accepted
systemacity as an integral element of crimes against humanity.
The requirement articulated in both the Barbie and Touvier
decisions that crimes against humanity must be committed as
part of a common plan in furtherance of a State policy of
political hegemony is completely novel and raises complex problems
of interpretation.1 1 6 There are two elements of this
requirement. First, there must be a "common plan" to commit the
prohibited acts, and second, the commission of such acts must be in
furtherance of a State policy.
With regard to the first element, it is unclear who the
architect of the common plan must be. If it is the State's common
plan, then this requirement goes beyond the condition in the
1954 Draft Code, which only called for State participation in
crimes against humanity in the form of either instigation or
tolerance.
As for the second element, the definition does not call for a
State policy to commit crimes against humanity, but for a very
specific kind of policy. The French Court of Cassation required
a State policy of political hegemony, while the Canadian
Supreme Court wanted a State policy of discrimination. The
focus on the State is problematic in situations where crimes may be
committed to further the objectives of a non-state actor.
Furthermore, aside from the difficulties of interpreting a term as
115. The requirement that inhumane acts be committed against "any civilian
population or any identifiable group of person" suggests an implicit requirement of
discriminatory intent because the perpetrator must have a basis on which to identify such
groups.
116. See Tadic Judgment, Case No. IT-94-1-T, 653 (holding that "[t]raditionally
this requirement [that the acts target a civilian population] was understood to mean
that there must be some form of policy to commit these acts.").
1998]
manity; a discriminatory motive for those acts; and a
governmental, organizational, or group policy to commit those acts.
As noted earlier, the ICTY Trial Chamber in the Nikolic
Rule 61 Decision had already taken the approach of reading
"widespread" and "systematic" criteria as a component of "any
civilian population.' 1 65 Here, the IC[Y Trial Chamber
confirmed that these conditions existed in the alternative and that
" [e] ither one of these is sufficient to exclude isolated or random
acts."1' 6 6 The ICTY Trial Chamber observed that the U.N.
Secretary-General's Report, Vukovar Hospital Rule 61 Decision, and
the 1996 ILC Draft Code also treated these conditions as
alternatives. The Tadic Judgment did not elaborate on how to construe
"widespread" or "systematic," but it cited the relevant portions of
the ILC's comments to Article 18 in the 1996 Draft Code.'6 7
Finally, the ICTY Trial Chamber affirmed that a single act
committed in the context of a widespread or systematic attack could
constitute a crime against humanity. 168
With regard to the requirement of a discriminatory motive,
the ICTY Trial Chamber conceded that the "law in this area is
mixed.'1 69 Although the opinion cited several sources that
reject the need for establishing discriminatory intent and noted
that the ICTY Statute itself does not include this element, the
ICTY Trial Chamber ultimately imposed this requirement
because it had been raised in the Secretary-General Report and
"since several Security Council members stated that they
interpreted Article 5 as referring to acts taken on a discriminatory
basis."'7 0 France, the United States, and Russia were the states
that supported the inclusion of a discriminatory motive.' 7 '
Turning to the final component of "population," the ICTY
Trial Chamber required that there be "some form of policy to
commit these acts."' 7 2 This approach is somewhat puzzling
because the inquiry into systemacity, one alternative in the first
component of "population," already addresses the issue of
165. See supra note 151 and accompanying text.
166. TadicJudgment, Case No. IT-94-1-T (Oct. 2, 1995).
167. Id. 1 648 (1997); see supra notes 60-68 and accompanying text.
168. Tadic Judgment, Case No. IT-94-1-T, 648.
169. Id. 650.
170. Id. 652.
171. Id.
172. Id. 653.
whether or not an action was taken pursuant to a policy. 173 If
the "policy element" is treated here as a separate component,
then even when the first element of "population" has been
established by demonstrating that inhumane acts were committed on
a widespread basis, there would still be a need to show the
existence of a policy to commit such acts. The ICTY Trial Chamber,
however, then went on to say that the policy does not have to be
explicit, but can be inferred. 174 If the "policy" component can
simply be established by the fulfillment of either alternative of
the first condition, then it would appear not to be an additional
element at all.
The formulation of the policy requirement is also
unfortunate because of the necessary specificity of the requisite policy.
A general policy of ethnic cleansing, as was present in the former
Yugoslavia, does not appear to be sufficient under the ICTY Trial
Chamber's formulation because there must be a "policy to
commit these acts." Thus, it appears that within the general policy of
ethnic cleansing there would also need to be a specific policy to
commit murder, rape, torture, and so forth. The ICTY Trial
Chamber, however, does not address this point because of its
willingness to infer the existence of a policy from evidence of the
widespread or systematic commission of such acts.
In the subsequent paragraph, the ICTY Trial Chamber
notes that the "policy" element raises another issue, that is, the
"nature of the entity behind the policy. ' 175 It is here that this
component adds an additional requirement, the need for the
acts to be committed pursuant to a policy of a state or of "forces
which, although not those of the legitimate government, have de
facto control over, or are able to move freely within defined
territory. ' 1 76 The ICTY Trial Chamber cited with approval the
formulation in the ILC 1996 Draft Code, which referred to a
"government or any organization or group."1 77 Although the ICTY
Trial Chamber failed to elaborate further on what sorts of
entities may fall into this category, it cited the observation of the
173. Id. 648.
174. "Notably, if the acts occur on a widespread orsystematic basis that demonstrates
a policy to commit those acts, Whether formalized or not." Tadic Judgment, Case No.
IT-94-1-T, 653 (May 7, 1997) (emphasis added).
175. Id. 654.
176. Id.
177. Id.
1998]
1991 1LC Report that "private individuals with de facto power or
toermgaantiiczeodr imnacssrimviionlaaltiognasngosf ohru mgraonuprsigmhtisg.1h7t8 also commit"
sys
Finally, with regard to the requisite mental element for
crimes against humanity, the ICTY Trial Chamber noted that
there are two components. First, the accused must know of the
broader context in which he commits his acts. 179 While the Finta
decision articulated a similar mental element by requiring the
accused to have knowledge of the "facts or circumstances which
would bring his or her acts within crimes against humanity, 180°
the ICTY Trial Chamber elaborated on this further by
explaining that the perpetrator must have "knowledge, either actual or
constructive, that these acts were occurring on a widespread or
systematic basis."'' Secondly, the Trial Chamber ruled that the
accused cannot commit any crimes against humanity for purely
personal reasons.'8 2 It offered as an example a case arising
under German penal law in 1948, where a man had denounced
his wife for being pro-Jewish and anti-Nazi.1 8 3 Although there
were personal motivations behind the denunciation, the ICTY
Trial Chamber noted that he had nevertheless been convicted of
a crime against humanity because "his behavior fitted into the
plan of persecution against Jews in Germany.' '1 84
In sum, the Tadic Decision on Jurisdiction established early
on that a nexus between crimes against humanity and armed
conflict, while required by the ICTY Statute, did not reflect
contemporary international law. This position was reaffirmed by the
Nikolic Rule 61 Decision, the Vukovar Hospital Rule 61
Decision, and the Tadic Judgment. The Vukovar Hospital Rule 61
Decision is also significant because it began to apply the
"widespread" and "systematic" criteria, elements that had been
identified in the Secretary-General and Commission reports and
briefly raised in the Nikolic Rule 61 Decision. The Vukovar
Hospital Rule 61 Decision was also the first opinion by the ICTY to
178. Id. 654-55.
179. TadicJudgment, Case No. IT-94-1-T (May 7, 1997).
180. Id.
181. Id. 659.
182. Id.
183. Id. 658 (citing Obersten Gerichtshofes, Decision of the District Court
(Landgericht) Hamburg of 11 Nov. 1948, STS 78/48, Justiz und NS-Verbrechen II,
1945-66, 491, 499 (unofficial translation)).
184. Id.
affirm that the term "civilian" could apply to individuals who
were not strictly non-combatants, a position that was taken by the
Commission and later re-affirmed by the Tadic Judgment.18 5
The Tadic Judgment noted three elements of the term
"population." The ICTY Trial Chamber's first required the
"widespread or systematic" commission of acts of crimes against
humanity, applying these criteria as alternatives and not
cumulatively." 6 Second, the ICTY Trial Chamber required a
discriminatory motive, citing the intent of the Security Council as a
dispositive factor.18 7 Finally, there needed to be a governmental,
organizational, or group policy to commit inhumane acts,
although the ICTY Trial Chamber was willing to infer the
existence of such a policy from the widespread or systematic
commission of those acts. 88 In clarifying the requisite mental state, the
ICTY Trial Chamber noted that the defendant must have
knowledge that his acts took place within the context of a widespread
or systematic attack. 8 '
III. THE STATUS OF CRIMES AGAINST HUMANITY IN
INTERNATIONAL LAW PRIOR TO THE
ROME CONFERENCE
Article 38 of the Statute for the International Court of
Justice' 9° ("ICJ Statute") recognizes four sources of international
law: "1) international conventions, whether general or
particular ...; 2) international custom, as evidence of a general
practice accepted as law; 3) the general principles of law recognized
by civilized nations; 4) ...judicial decisions and the teachings of
the most highly qualified publicists."1'91 In examining the
diverse treatment of the elements of crimes against humanity by
the bodies discussed in Parts I and II, and in weighing the
relative authority of these various interpretations, it is important to
1998]
keep in mind the hierarchy of the sources of law that has been
established by the ICJ Statute.
The scope of crimes against humanity is difficult to
determine precisely at any given point in time because of the absence
of a specialized convention on this crime. 92 Nevertheless,
evidence of one aspect of the definition-the deletion of the nexus
between crimes against humanity and armed conflict-can be
found in the Genocide Convention, a treaty defining a particular
crime that constitutes a crime against humanity. More generally,
the Convention on Statutory Limitations applies to crimes
against humanity "whether committed in time of war or in time
of peace."' 95 While the ICTY Statute incorporates the
requirement of a nexus with armed conflict," 4 the ICTY itself has
repeatedly stated in the Tadic Decision on Jurisdiction and
subsequent decisions that this restriction is intended to limit the
jurisdiction of the ICTY, not to reflect contemporary international
law.195
The development of international law regarding the need
for a discriminatory motive in crimes against humanity has been
uneven and confused. The structure of the Nuremberg Charter
definition, and its subsequent interpretation by the ILC and the
U.N. Secretary-General in 1949, strongly suggested that the
grounds for discrimination applied only to the crime of
persecution and not to the definition of crimes against humanity as a
whole. On the other hand, recent national law decisions on
crimes against humanity have understood a discriminatory
motive to be a requisite element; notably, the Fintacourt in Canada
required that crimes against humanity be committed according
to a State policy of discrimination. Moreover, the requirement
of a discriminatory motive was incorporated by the Security
Council, either explicitly or implicitly, into the ICTY Statute and
ICTR Statute, affirmed by the U.N. Secretary-General and the
Commission, and applied by the ICTY.
The interpretations of the ILC can be considered
authoritative because the U.N. General Assembly gave this body a
mandate to formulate principles of international criminal law.1 96 It is
questionable, however, what weight should be given to the
reports by the Secretary-General of the United Nations or by the
Commission. With regard to the latter body, it is important to
note that the Commission's initial mandate, as defined by the
Security Council, was only to "examine and analyze the
information submitted [by States and humanitarian organizations] ...
with a view to providing the Secretary-General with its
conclusions on the evidence of grave breaches of the Geneva
Conventions and other violations of international humanitarian law."1 97
Clearly, the Security Council did not envision that the
Commission would provide an authoritative legal interpretation of the
crimes identified in the ICTY Statute. This was also explicitly
recognized by the Commission, which stated in its report that
the "Commission's mandate is to provide the Secretary-General
with its conclusions on the evidence of such violations and not to
provide an analysis of the legal issues."'98 Despite the questionable
authority of the Commission's report, the ICTY in the Vukovar
Hospital Rule 61 Decision and the TadicJudgment relied heavily
on the Commission's Report to argue that the term "any civilian
population" does not apply strictly to non-combatants.
The decisions of the ICTY constitute an important source of
international law, not only as judicial decisions but also as
decisions of an international tribunal. In the Tadic Judgment, the
ICTY applied the requirement of a discriminatory motive
because this requirement had been the understanding of the
Security Council.' 99 The views of the Security Council members
carry weight both because the Yugoslav and Rwandan tribunals
were established under its authority, and also because the
expression of such views constitute state practice, which
contributes to customary international law.z ° °
The acceptance of the requirement of a discriminatory
motive by the national courts of France and Canada may also
constitute either evidence of customary international law or of the
196. See supra note 31 and accompanying text.
197. S.C. Res. 780, U.N. SCOR, 47th Sess., 3119th mtg., U.N. Doc. S/RES/780
(1992).
198. Commission of Experts'Report, supra note 130, 41 (emphasis added).
199. See supra note 170 and accompanying text.
200. RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 102 (1996) (noting that state
practice includes diplomatic acts and official statements).
1998]
principles of municipal law recognized by civilized nations. 20 1 It
is important to note, however, that a "significant minority of
jurists holds that national law principles, even if generally found in
most legal systems, cannot ipso facto be international law. 20 2
The concerns about incorporating national legal principles
directly into international law are even more salient when the
motivations behind a national court's interpretation of a legal
principle may be suspect, as has been suggested with regard to
the French courts' interpretation of crimes against humanity.203
The relevance of national court decisions for reflecting the
development of crimes against humanity in contemporary
international law is also greatly diminished by the fact that these
courts were invariably punishing acts that occurred during
World War II, not acts that occurred in recent years. To avoid
applying an ex post facto criminal norm, the courts thus had to
apply the definition of crimes against humanity as it existed and
was understood fifty years ago, rather than the "current"
definition of crimes against humanity, whatever that may be. 20 4
The elimination of the nexus with armed conflict in recent
international law gave rise to two concerns about the definition
of crimes against humanity: first, how to exclude isolated acts
from crimes against humanity; and second, how to distinguish
an ordinary crime from one that rises to the level of
international concern. Thus, it is no coincidence that the cases
discussing Control Council Law No. 10, which applied a definition of
crimes against humanity that de-linked these crimes from crimes
against peace and war crimes, also restricted its application to
the systematic commission of State-sponsored acts.20 5 Similarly,
the 1954 Draft Code definition, which removed the nexus with
armed conflict, was also the first formulation by the ILC to
incorporate a requirement of State involvement in crimes against
hu201. HENRY J. STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN
CONTEXT 47-48 (1996) (citing OSCAR SCHACrER, INTERNATIONAL LAW IN THEORY AND
PRACTICE 5 (1991)).
202. Id.
203. See supra note 121 and accompanying text.
204. Polyukhovich v. The Commonwealth, (1991) 1 I.L.R. 3, 68 (Aust.) (stating
that there is "moral tension ... between a desire to ensure that fundamental justice is
not avoided by an overly technical scrutiny and a fundamental objection to individuals
being called to account by victors in a war according to laws which did not exist at the
time.").
205. See Lippman, supra note 8.
manity, either by commission, instigation, or toleration. 20 6
In response to the first concern, of excluding isolated and
random acts, the solution has been to impose a criteria of the
"widespread or systematic" commission of these acts. The
criteria of "systematic" was first raised by the U.S. courts under
Control Council Law No. 10 and then also applied by the French
courts in the Barbie and Touvierjudgments. 20 7 The terms "mass
scale" or "widespread" were subsequently added by the U.N.
Secretary-General and the Commission in their reports.20 8 The
decisions of the ICTY imposed a uniformity in the language, by
using the terms "widespread" and "systematic" and clarifying that
these criteria existed as alternatives. 20 9 The gradual and
consistent application of these elements by national and international
tribunals, coupled with the ILC's inclusion of these elements in
the 1996 Draft Code, demonstrates that contemporary
international law requires that crimes against humanity be committed
on a "widespread or systematic" basis.210
The incorporation of a State action and, later, a State policy
element in the definition of crimes against humanity is more
problematic. In 1954, the ILC merely required government
instigation or tolerance of a crimes against humanity. 2 11 In the
intervening decades when the ILC suspended consideration of
the Draft Code, national courts were left to interpret crimes
against humanity. 21 2 This suspension proved to be troubling
because national interests may have prompted the courts to define
the crime too narrowly. Thus, the national courts not only
introduced a policy requirement, but also further imposed a
require
DEFINING CRIMES A GA1NST HUMANITY
ment for specific types of policy. The Commission adopted the
Finta court's requirement of a policy of discrimination or
persecution.
The 1996 ILC Draft Code, however, treated "policy" as an
indicator of "systematic" and required State, organizational or
group involvement to be evidenced by instigation or direction.
The Tadic Judgment in the next year followed a similar
approach.2 13 Although the ICTY appears at first to require a
separate showing of policy, in addition to the "widespread" or
"systematic" criteria, a closer examination reveals that the ICTY was
willing to infer the "policy" element from the establishment of
either the "widespread" or "systematic" criteria. The significance
of the "policy" element appears to lie in its examination of the
"nature of the entity behind the policy." Thus, the 1996 Draft
Code and the 1997 Tadic Judgment have a two-fold importance:
in adding organizations and groups as entities that may be liable
for crimes against humanity, and in casting doubt as to whether
international law requires a showing of "policy" as an additional
element of establishing crimes against humanity.
IV. NEGOTIATIONS ON THE DRAFI- STATUTE FOR AN
INTERNATIONAL CRIMINAL COURT (1994_1998)214
Prompted by Trinidad and Tobago, whose government was
keen on establishing a permanent International Criminal Court
to prosecute narcotics trafficking crimes, ,the U.N. General
Assembly passed a resolution in 1992, requesting the ILC to draft a
statute for such a court.21 5 In September 1994, the ILC
submitted the Draft Statute for an International Criminal Court2 16
("Draft ICC Statute") to the General Assembly. Article 20(d) of
the Draft ICC Statute listed crimes against humanity as one of
the "Crimes within the jurisdiction of the Court.'"217 The
General Assembly subsequently authorized the creation of an Ad
Hoc Committee on the Establishment of an International
Criminal Court ("Ad Hoc Committee") to review the substantive and
administrative issues arising out of the Draft ICC statute.21 8
The Ad Hoc Committee convened two sessions in 1995,
from April 3 to 13 and from August 14 to 25. During the Ad hoc
Committee discussions on crimes against humanity, delegates
emphasized that the ICC's jurisdiction should be limited to
serious crimes rather than isolated offenses. Accordingly, some
delegations expressed the view that elements such as a nexus to
armed conflict and criteria referring the "widespread or
systematic" nature of the crimes should be included in the definition of
crimes against humanity. Others recognized that crimes against
humanity "could be committed against any civilian population"
and argued that the inclusion of a discriminatory motive was
"questionable and unnecessary. "219
Following the submission of the Report of the Ad Hoc
Committee on the Establishment of an International Criminal
Court 2 20 ("Ad Hoc Committee Report"), the U.N. General
Assembly determined that further review of the draft ICC Statute
was necessary and established the Preparatory Committee on the
Establishment of an International Criminal Court ("Preparatory
Committee"). In 1996, the Preparatory Committee met from
March 25 to April 12 and from August 12 to 30. The Preparatory
Committee's 1996 Report contained nine different proposals for
crimes against humanity, in addition to the Chairman's informal
text.2 2 1 There continued to be disagreement over the necessity
of a nexus with armed conflict or of a discriminatory motive.
While generally supporting the inclusion of the "widespread or
systematic" criteria, delegations had various views on what the
terms would entail. Some of the suggested components for
"widespread or systematic" included: an element of planning,
1998]
policy, or conspiracy; a multiplicity of victims or a massive scale
of violations; and consent of the government or of the party in
charge of the territory. 222
At the end of 1996, the U.N. General Assembly renewed the
mandate of the Preparatory Committee for four more sessions,
with the last one held in the spring of 1998.223 The third session
of the Preparatory Committee, held from February 11 to 21,
included a working group on the definition of crimes. The criteria
of "widespread or systematic" in the definition of crimes against
humanity continued to be a point of contention, with the debate
extending to whether the conditions should be viewed as
alternatives or cumulative. 224 There was also ongoing disagreement
over whether a nexus to armed conflict and a discriminatory
motive needed to be included. The definition of crimes against
humanity that emerged from this Preparatory Committee session
contained the following chapeau in the first paragraph:
For the purpose of the present Statute, any of the following
acts constitutes a crime against humanity when committed [as
part of a widespread and/or systematic commission of such
acts against any population]: as part of a widespread and/or
systematic commission of such acts against any [civilian]
population [committed on a massive scale in armed conflict on
political, philosophical, racial, ethnic or religious grounds or
any other arbitrarily defined grounds]2 2 5
The second paragraph defined each of the acts listed in the first
222. Report of the PreparatoryCommittee on theEstablishmentof an InternationalCriminal
Court, U.N. GAOR, 51st Sess., Supp. No. 22A, Vol. 1, 21-24 U.N. Doc. A/51/22
(1996).
223. G.A. Res. 51/207, U.N. GAOR, 51st Sess., Supp. No. 49, at 342, U.N. Doc. A/
51/49 (1996).
224. Hall 2, supra note 214, at 126-27 (1998). Christopher Hall explained that
there was:
considerable disagreement on the scale or gravity of the offenses to be
included in the ICC'sjurisdiction .... According to some states, the ICC should
have jurisdiction over crimes against humanity only when the acts were both
widespread and systematic. A larger number of states, however, argued that
this requirement would unduly restrict the scope of the ICC's jurisdiction and
urged that the ICC have jurisdiction when the acts were either widespread or
systematic.
Id.
paragraph that may constitute crimes against humanity.226
The definition of crimes against humanity was not taken up
again in any of the subsequent Preparatory Committee sessions
that preceded the Rome Conference. A minor revision was
made to the text during an intersessional meeting convened in
Zutphen, the Netherlands, inJanuary 1998.227 The Zutphen text
modified the opening clause of the "crimes against humanity"
chapeau, for consistency with opening clauses of the definitions
for the other crimes, to read: "For the purpose of the present
Statute, a crime against humanity means any of the following
acts when committed ....,,22' The Zutphen revision and the
remainder of the February 1997 Preparatory Committee text on
crimes against humanity served as the basis for negotiations in
the Rome Conference. 229
V. ROME CONFERENCE
Pursuant to U.N. General Assembly Resolution 52/160,230
the United Nations Diplomatic Conference of Plenipotentiaries
on the Establishment of an International Criminal Court
("Rome Conference") was held in Rome from June 15 to July 17,
1998.231 There were at least three levels of negotiations and
decision-making at the Rome Conference. The Committee of the
Whole initially served as the forum where government
delegations expressed their general positions on issues such as the
definitions of crimes and the preconditions to the exercise of the
ICC's jurisdiction. Debate on the details of the provisions took
place in Working Groups, which were organized according to
the component parts of the statute. As the Rome Conference
continued, the Committee of the Whole convened less
fre1998]
quently, meeting only to approve text generated by the working
groups and to forward such text to the drafting committee.
Finally, informal sessions were often convened to deal with
particularly contentious issues on which the working groups could not
achieve consensus. 23 2
A. PreliminaryDiscussions on Crimes Against Humanity
The definition of crimes against humanity was discussed in
the Committee of the Whole on the morning of June 17.23
Aside from the diverse views on which acts may be considered
crimes against humanity,234 the debate centered primarily on
two issues. First, while many countries expressed the view that
crimes against humanity can be committed in times of peace,
other states insisted on a nexus with armed conflict. Certain
delegations even went so far as to state that crimes against
humanity should only be limited to acts occurring in armed
conflicts of an international nature.23 5
Second, there was considerable disagreement over whether
the criteria of "widespread" and "systematic" should be treated
cumulatively or as alternatives, that is, whether the two words
should be connected by an "and" or an "or." One delegate
proposed the deletion of "widespread," noting that this term would
be difficult to apply. Another issue raised by the French
delegate was whether the definition should include the requirement
of a discriminatory motive. Only three delegates addressed this
proposal, however, and they all opposed it. In summing up the
morning's debate, the Chairman of the Committee of the Whole
also failed to mention the French proposal.23 6
The next debate on crimes against humanity took place in
the working groups, which convened on the morning ofJune 22.
The issues relating to the "widespread" and "systematic" criteria
emerged as the primary source of contention, with debate
con232. See Rules of Procedurefor the United NationsDiplomatic Conference of
Plenipotentiaries on the Establishment of an International Criminal Court, U.N. Doc. A/Conf.183/6
(1998).
233. Author's notes on the Proceedings of the Rome Conference (une 17, 1998)
(on file with the Fordham InternationalLawJournal) [hereinafter Notes].
234. Another related issue was whether the enumerated acts should be defined
within the article.
235. Notes, supra note 233 (June 17, 1998).
236. Id.
tinuing on whether "and" or "or" should be used to connect the
two terms. Two states continued to propose the deletion of
"widespread." Discussion also turned to the meaning of the
terms. Emphasizing the need to exclude isolated incidents,
delegations generally interpreted "widespread" to indicate a
"multiplicity of persons" or a "massive" attack. With regard to
"systematic," delegates noted that this indicates some degree of
planning, pattern, coordinated activity, or scheme. The U.S.
delegate proposed that systematic should be defined as an
"attack that constitutes or is part of, or in furtherance of, a
preconceived plan or policy, or repeated practice over a period of
time. "237
Although a near consensus had been reached on the
exclusion of a nexus between crimes against humanity and armed
conflict, China, later joined by Turkey, continued to insist upon
such a link. France conceded defeat on the inclusion of a
discriminatory motive in the definition, noting that although "it was
important to include these grounds in the chapeau as it was part
of its legal tradition, ... other states did not support it on this
point. '23' The debate on the inclusion of a reference to "civilian
population" focused on whether non-combatants should be the
only victims of crimes against humanity. Finally, the United
Kingdom raised the point that planning by a government or
organization should be an additional criteria.
In sum, the principle issues that emerged during the
Committee of the Whole and working group discussions on crimes
against humanity were the requirement of a nexus between
crimes against humanity and armed conflict, and the treatment
of "widespread" and "systematic" as either alternative or
cumulative criteria. Attempts were also made to define "widespread"
and "systematic." The requirement of a discriminatory motive in
the chapeau of crimes against humanity was quickly dropped
when it became apparent early on that there was virtual no
support for its inclusion. The very limited discussion of "civilian
population" failed to reflect the complex analysis that the ICTY
had undertaken for this term.
237. NGO COALITION FOR AN INTERNATIONAL CRIMINAL COURT (DEFINITIONS
TEAM), INFORMAL REPORT OFJUNE 23, 1998 (1998) (on file with the FordhamInternational
Law Journal).
238. Id.
B. The CanadianProposalfor the Chapeau to Crimes
Against Humanity
On July 1, the Canadian delegation introduced a
compromise proposal for the chapeau to crimes against humanity,
aimed at meeting the concerns of those countries who wanted
"widespread" and "systematic" to be treated as cumulative
criteria. The Canadian chapeau read as follows:
(1) For the purpose of the present Statute, a crime against
humanity means any of the following acts when knowingly
committed as part of a widespread or systematic attack against
any civilian population ....
(2) For the purpose of paragraph 1: (a) "attack against any
civilian population" means a course of conduct involving the
commission of multiple acts referred to in paragraph 1
against any civilian population, pursuant to or knowingly in
furtherance of a governmental or organizational policy to
commit those acts. 23 9
Canada also issued a Background Paper on Some Jurisprudence
on Crimes Against Humanity in support of its proposal. Citing the
Tadic Decision on Jurisdiction, the paper affirmed that
customary law no longer required crimes against humanity to be linked
with armed conflict. It referred to the Tadic Judgment to argue
that "widespread" and "systematic" should be treated as
alternatives and that the definition should require a showing of
governmental, organizational, or group policy. Finally, the paper
emphasized that a single crime can constitute a crime against
humanity if it was committed as part of a attack, relying on the
Vukovar Hospital Rule 61 Decision and the Tadic Judgment.24 °
1. Government Responses to Canadian Proposal
In the informal session conducted on the Canadian
proposal in the morning ofJuly 1, some delegates continued to express
their preference for "widespread and systematic" and China
seemed unwilling to give up on the nexus with armed conflict. 241
The introduction of the definition of "attack against any civilian
239. CANADIAN DELEGATION, BACKGROUND PAPER ON SOME JURISPRUDENCE ON
CRIMES AGAINST HUMANITY (July 1, 1998) [hereinafter CANADIAN PROPOSAL] (on file
with the Fordham InternationalLaw Journal).
240. Id.
241. Notes, supra note 233 (July 1, 1998).
population" attracted a broad range of comments. Some
delegates expressed the view that the "commission of multiple acts"
language was sufficient to exclude isolated acts from the
definition as crimes against humanity, while others felt this term was
still not enough to ensure that only acts committed on a massive
scale would be prosecuted as crimes against humanity. 242 The
U.K. delegate also suggested that "multiple commission of acts"
would be more appropriate than "multiple acts. "'243
As for the reference to "policy" in paragraph 2(1) of this
paper, Costa Rica raised concerns about the difficulties in
establishing policy. 244 The Swiss delegate observed that the proposal,
which refers to a "governmental or organizational policy," did
not track the language of the TadicJudgment, which referred to
policies by a government, organization, or group.245 Finally,
there was some confusion about the significance of the word
"knowingly." 246
A working group session on crimes against humanity met on
the morning of July 3. The discussion of the chapeau, however,
was limited and did not raise any new points. The Chair of the
working group adopted the chapeau as it stood, noting that
some delegations had problems with "knowingly" and "multiple
acts." The remainder of the session was devoted to a discussion
of the enumerated acts.2 4 7
2. Non-Governmental Organization Responses to the
Canadian Proposal
The Canadian proposal was also strongly criticized by
nongovernmental organizations ("NGOs") observing the Rome
Conference. 248 While welcoming the treatment of "widespread" and
"systematic" as alternative criteria in paragraph 1, NGOs viewed
the explanatory definition of "attack directed against any civilian
population" in the second paragraph as an ill-disguised attempt
to reintroduce these criteria as cumulative. As argued by the
South Asian Human Rights Documentation Center, the
prosecutor "must still prove that the attack against the civilian
population was 'widespread' (involving multiple acts) and 'systematic'
(pursuant to or knowingly in furtherance of a policy). "24§ A
related point of concern was that the requirement of a "policy"
would make it more difficult to establish "systematicity." One
NGO stated, "While systematic has an established meaning in
international law and can be demonstrated by a pattern of official
actions or tolerance of abuse, 'governmental or organizational
sphooliwcyin'gmaoyf abfefisrmusacteivpetibalnedtofoarnmaarlroawdmerininistterraptirveetataicotns.," 2s5u0 ch as a
There were also strong objections to the double knowledge
requirement contained in the Canadian proposal. Not only did
the perpetrator have to "knowingly commit [acts] as part of a
widespread or systematic attack," as set forth in paragraph 1, but
the second paragraph further requires that the attack must be
committed "pursuant to or knowingly in furtherance of a
governmental or organizational policy. ' 251 The second knowledge
requirement is problematic because it is ambiguous as to whom
it should be imputed. If it applies to those participating in the
attack, "then the prosecutor would have to prove the intent of
third parties with respect to the policy behind the attack in order
to secure a conviction for crimes against humanity."252
Moreover, if the knowledge requirement applies to the perpetrator,
then this requirement clearly exceeds the language of the Tadic
Judgment, which only required the defendant to have
"knowledge, either actual or constructive, that these acts were
occurring on a widespread or systematic basis." 25 ' Also, legal
commentators have generally rejected such a high knowledge
requirement:
SAL ON CHAPEAU TO CRIMES AGAINST HuMANiTy (on file with the FordhamInternational
Law Journal) [hereinafter HRW Comments].
249. SAHRDC Paper, supra note 248.
250. HRW Comments, supra note 248.
251. CANADIAN PROPOSAL, supra note 239.
252. SAHRDC Paper, supra note 248.
253. Tadic Judgment, Case No. IT-94-1-T, 659 (Oct. 2, 1995).
Public officials acting in furtherance of "state action or
policy" do not, however, need to know that they are part of an
overall scheme or design, nor do they need to know the
specifics of the overall scheme or design beyond their own role if
they know that their conduct is illegal or that the orders
under which they are acting are manifestly illegal.25 4
Two other problems with the Canadian proposal are worth
noting. The term "commission of multiple acts referred to in
paragraph 11"255 is troubling because it allows for the
misinterpretation that the commission of murders is insufficient to qualify as
an attack, but that murders have to be committed in conjunction
with other inhumane acts such as torture or enslavement.
Additionally, as noted above in the discussion of the TadicJudgment,
the requirement of a "policy to commit those acts" suggests that
a general policy of suppression would be insufficient for the
purposes of this definition; rather, there must be a policy to commit
specific acts.
C. The Final Definition
On July 6, the Bureau of the Committee of the Hole
released a Discussion Paper containing a compromise proposal for
some of the more contentious aspects of the Draft ICC Statute,
including the definitions of crimes, the preconditions to the
exercise ofjurisdiction, and the role of the prosecutor.2 56 The
chapeau to the definition of crimes against humanity in paragraph 1
and the relevant explanatory note in paragraph 2 read as
follows:
(1) For the purpose of the present Statute, a crime against
humanity means any of the following acts when committed as
part of a widespread or systematic attack against any civilian
population and with knowledge of the attack.
(2) For the purpose of paragraph 1: (a) "attack against any
civilian population" means a course of conduct involving the
multiple commission of acts referred to in paragraph 1
against any civilian population, pursuant to or in furtherance
of a State or organizational policy to commit such attack.
254. BASSIOUNI, supra note 8, at 256.
255. CANADIAN PROPOSAL, supra note 239.
256. COMMITTEE OF THE WHOLE, DiscussionPaper, United Nations Diplomatic
Conference ofPlenipotentiarieson the Establishmentof an InternationalCriminalCourt, U.N. Doc. A/
Conf.183/C.1/L.53, at 2-3 (July 6, 1998).
This definition contains four substantive modifications.2 5 7
First, the phrase "multiple commission of acts" replaces
"commission of multiple acts." Second, the Discussion Paper deletes
the second knowledge requirement previously contained in
paragraph 2. Third, the requisite policy is no longer a policy to
commit the acts, but a "policy to commit such an attack."
Finally, the relevant entity behind the policy is the State, not the
government.
Although the Committee of the Whole examined the
Discussion Paper, there was no extensive debate on crimes against
humanity, given the highly politicized and controversial nature
of the other issues in that paper. The subsequent Bureau
Proposal distributed on July 10 contained no further changes. 25"
Except for a minor grammatical revision, substituting the final
"and" in paragraph 1 with a comma, the Discussion Paper's
formulation of the chapeau and its explanatory note ywas thus
incorporated as Article 7 of the Rome Statute.2 59
CONCLUSION
As can be said of much of the Rome Statute, the definition
of crimes against humanity in Article 7 gives cause for
celebration in certain respects and continued vigilance or possible
concern in others. The elimination of the connection between
armed conflict and crimes against humanity accurately reflects
the current state of international law, which rejected the need
for such a nexus as early as 1954, as expressed by the ILC.
Although the ICTY Statute does require a link with armed
conflict, this requirement has been resoundingly interpreted in the
decisions emerging from the ICTY as a restriction on the ICTY's
257. A fifth modification that does not change the substance of the chapeau is that
the words "knowingly committed as part of a[n] .. .attack" in the Canadian proposal
are replaced in the Committee of the Whole Discussion Paper, United Nations
Diplomatic Conference of Plenipotentiaries on the Establishment of an International
Criminal Court ("Discussion Paper") by the phrase "committed ...with knowledge of the
attack."
258. COMMITTEE OF THE WHOLE, Bureau Proposal, United Nations Diplomatic
Conference of Plenipotentiarieson the Establishmentof an InternationalCriminalCourt, U.N. Doc. A/
Conf.183/C.1/L.59, at 2-3 (1998).
259. ROME STATUTE, supra note 1, art. 7. Article 7 also differed from the Bureau
Proposal in other aspects of the definition of crimes against humanity, with regard to
the addition of rape and other forms of sexual violence among the enumerated acts,
the order of the definitions in paragraph 2, the addition of the definition of enforced
pregnancy, and the addition of the definition of gender. Id.
jurisdiction rather than a restriction in the definition of crimes
against humanity itself.
While the need for a discriminatory motive has been
unclear, recent developments in international law, particularly with
regard to the ICTY, reveal a growing acceptance of this element.
It was therefore surprising that the deletion of this requirement
was relatively uncontroversial in Rome. Nevertheless, this
outcome is certainly welcome. The requirement lacks textual basis,
not only historically, but also because it conflicts with the
recognition of "any civilian population" as the relevant group of
protected persons by allowing only certain groups to claim that they
have suffered crimes against humanity.
The Rome Statute appropriately treats the "widespread" or
"systematic" criteria as alternative elements, following the
practice of the ILC and the ICTY. The explanatory note to
paragraph 1, however, potentially undermines the alternative nature
of these criteria by requiring the "multiple commission of acts
...pursuant to or in furtherance of a State or organizational
policy to commit such an attack."26" The term "multiple
commission of acts" is novel because the word "attack" has never
been interpreted before in the decades of jurisprudence on
crimes against humanity. It imposes a slightly higher threshold
than that required by "widespread" because the latter can simply
involve a quantitative inquiry into the multiplicity of the victims,
and not of the acts. Indeed, the ILC noted in 1996 that the
"widespread" criteria could be fulfilled by the "singular effect of
an inhumane act of extraordinary magnitude. ' 261 While the
"multiple commission of acts" element thus adds a new
component to the definition of crimes against humanity, it is important
to keep in mind the observation of the Indian delegate that
"anything more than one could be multiple."262 Thus, the additional
burden is not unduly onerous.
The need to establish a "State or organizational policy" is
problematic because this requirement would appear to establish
a higher threshold than that which is required to establish
systematicity. As noted by the ILC in 1996 and affirmed by the
ICTY in the Tadic Judgment, systematicity can be demonstrated
260. CANADIAN PROPOSAL, supra note 239.
261. See supra note 68 and accompanying text.
262. Notes, supra note 233 (July, 1 1998).
by a plan, which may be less explicit and formalized than a
policy. To require a demonstration of a policy on top of the
establishment of either the "widespread" or "systematic" criteria is
even more troubling because it, in effect, treats the latter two
criteria as cumulative. The ILC and the ICTY clearly retreated
from this approach, despite the interpretations by national
courts that required a State policy as an element of crimes
against humanity. Rather than talking about a "policy," the ILC
in its 1996 Draft Code noted the need for instigation or
direction by a government, organization, or group. While the ICTY
did refer to policy in the Tadic Judgment, it mitigated the
potential dangers of the use of the word by emphasizing that such a
"policy need not be formalized and can be deduced from the
way in which the acts occur."2 6 3 Most importantly, the ICTY
indicated that it would infer the existence of a policy from the
widespread or systematic commission of acts.
In construing the "policy" requirement, the future ICC
should keep in mind that the importance of this element, as
understood by the ILC and the ICTY, is not to demonstrate
systematicity, but to establish some degree of State or
organizational involvement in acts of crimes against humanity.
Accordingly, the ICC should follow the interpretation of the ICTY and
be willing to infer policy from the way acts are committed, rather
than insist upon proof of a formalized policy. This approach
would be consistent not only with contemporary international
law, but also with the intent of the delegates at the Rome
Conference who clearly sought to incorporate the widespread and
systematic criteria as alternative components. The Tadic Judgment
and its treatment of the policy element will have particular
relevance for interpreting the Rome Statute because the Canadian
proposal for the chapeau to crimes against humanity was
justified on the basis of the ICTY's reasoning in this decision.
Moreover, the decisions of the ICTY articulate principles of
international law that, according to Article 21 of the Rome Statute, may
be applied by the ICC. 26 4
As for other aspects of the "policy" requirement, Article 7
263. Tadic Judgment, Case No. IT-94-1-T (May 7, 1997).
264. ROME STATUTE, supra note 1, art. 21(1) (b) (providing that "[t]he Court shall
apply... [iln the second place, where appropriate, applicable treaties and the
principles and rules of international law.").
appropriately recognizes the relevant entity orchestrating the
policy can be either a state or an organization. International law
now recognizes that non-State actors may be subject to
international criminal liability. Although the definition fails to track the
terminology used by the ILC and the ICTY accurately, the
difference between organizations and groups remain unclear. The
former term implies a greater degree of formality in its
structure, but the impact, if any, of this omission on the prosecution
of crimes against humanity remains to be seen.
Finally, Article 7 defines the requisite policy as the "policy to
commit such an attack." This general formulation is an
improvement on the policies previously articulated by national courts or
the ICTY. Requiring the establishment of a specific,
narrowlydefined policy, such as a policy to impose political hegemony, to
discriminate, or to commit particular acts would have unduly
constrained the future ICC prosecutor in seeking justice for
crimes against humanity.
4. For example, the inclusion of rape and other forms of sexual violence in Article 7 (l) (g) of the Rome Statute of the International Criminal Court ("Rome Statute") constitutes an important improvement on the original Nuremberg definition of crimes against humanity . Id. art. 7 (l)(g). On the other hand, the requirement in Article 7(1) (h) that acts of persecution be committed in connection with another enumerated act is unprecedented and deeply regrettable . Id. art. 7 ( 1 ) (h). Also highly controversial were the definitions of "deportation or forcible transfer of population" in Article 7(2) (d), "forced pregnancy" in Article 7(2)(f), "enforced disappearance of persons" in Article 7(2)(i), and "gender" in Article 7(3 ). Id. art. 7 ( 2 )(d), (f) , (i) , 7 ( 3 ).
5. G.A. Res . 174 ( 11 ), U.N. GAOR , 2d Sess., 123d mtg. at 105, U.N. Doc A / 519 ( 1947 ).
6. Statutefor the InternationalCriminal Tribunalfor the Former Yugoslavia , S.C. Res . 827, U.N. SCOR , 48th Sess., 3217th mtg., U.N. Doc . S/RES/827 ( 1993 ) [hereinafter ICTY Statute] .
7. Statute of the InternationalTribunalfor Rwanda , S.C. Res . 955, U.N. SCOR , 49th Sess., 3453rd mtg., U.N. Doc . S/RES/955 ( 1994 ) [hereinafter ICTR Statute] .
8. For a comprehensive discussion of the history of crimes against humanity , see
9. Hague Convention Concerning the Laws and Customs of War on Land , Oct. 18 , 1907 , 36 Stat. 2277 , 205 Consol. T.S. 277 [hereinafter Hague Convention].
10. Vahkn N. Dadrian , Genocide as a Problem of National and InternationalLaw: The World War I Armenian Case and Its Contemporary Legal Ramifications, 14 YALE J . INT'L L . 221 , 233 - 40 ( 1989 )
11. Treaty of Peace between the Allied and Associated Powers and Germany, June 28, 1919 , 2 BEVANS 43, S.TREATv Doc . No. 66 - 49 , reproducedin 13 AM. J. INT'L L . 151 ( Supp . 1919 )
12. Treaty with Turkey and Other Instruments Signed at Lausanne, Aug. 6 , 1923 , U.S.-Turk., 49 Stat. 2692, reproducedin 18 AM. J. INT'L L. 1 (Supp . 1924 ) (entered into force Aug . 18 , 1934 ) [hereinafter Treaty of Lausanne].
13. See Lippman, supra note 8 , at 174-77.
14. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis , Aug. 8 , 1945 , 82 U.N.T.S. 280 , 59 Stat . 1544 [hereinafter London Agreement].
15. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers and Charter of the International Military Tribunal , Aug. 8 , 1945 , 59 Stat. 1544 , 82 U.N.T.S. 280 (entered into force Aug. 8 , 1945 ) [hereinafter Nuremberg Charter] ; Charter of the International Military Tribunal , Aug. 8 , 1945 , 59 Stat. 1544 , 82 U.N.T.S. 280 , annexed to London Agreement, supra note 14.
16. Id .
30. See Genocide Convention, supra note 27 , art. I, 78 U.N.T.S. at 280 ( declaring that "[t]he Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish."); Convention on Statutory Limitations, supra note 27, art. I (stating that "[n]o statutory limitation shall apply to war crimes ... [and] [c] rimes against humanity whether committed in time of war or in time of peace.").
31. G.A. Res . 174 ( 11 ), U.N. GAOR , 2d Sess., 123d mtg. at 105, U.N. Doc A / 519 ( 1947 ).
32. G.A. Res . 177 ( 11 ), U.N. GAOR , 2d Sess., 123d mtg. at 111, U.N. Doc . A/519 ( 1947 ).
33. Report of the InternationalLaw Commission, U.N. GAOR , 5th Sess., Supp . No. 12, U.N. Doc . A/1316, at 11 ( 1950 ) [hereinafter 1950 ILC Report] .
34. Id .
35. Nuremberg Charter, supra note 15 , art. 6( c ), 82 U.N.T.S. at 288 , 59 Stat. at 1557.
36. 1950 ILC Report, supra note 33 , 124 .
37. Id .
38. Id .
39. Prosecutor v. Dusko Tadic, Case No. IT-94-1-T (May 7 , 1997 ), Opinion and Judgment, International Criminal Tribunal for the Former Yugoslavia , Trial Chamber, 652 [hereinafter TadicJudgment] (citing SECRETARY-GENERAL, MEMORANDUM ON THE CHARTER AND JUDGEMENT OF THE NUREMBERG TRIBUNAL: HISTORY AND ANALYsIs at 67, U.N. Sales No . E.49 .II. ( 1949 )).
40. Draft Code of Offences Against the Peace and Security of Mankind, U.N. GAOR, 6th Sess ., U.N. Doc . A/ 1858 ( 1951 ) [hereinafter 1951 ILC Draft Code] .
41. Id . art. 2 ( 10 ).
42. Id .
43. Genocide Convention, supra note 27 , art. I, 78 U.N.T.S. at 280.
44. ILC 1951 Draft Code , supra note 40 . Other crimes defined in Article 2 of the Draft Code of Offenses Against the Peace and Security of Mankind ("1951 Draft Code") included aggression, terrorism, genocide, and war crimes . Id.
45. Article 6(c) of the Nuremberg Charter did not bar the prosecution of private individuals . See Nuremberg Charter, supra note 15 , art. 6( c ), 59 Stat. at 1557 , 82 U.N.T.S. at 288. Indeed, three private indviduals who were industrialists, rather than government officials , were prosecuted under Allied Control Council Law No. 10. See Lippman, supra note 8 , at 205.
46. Draft Code of Offences Against the Peace and Security of Mankind, U.N. GAOR, 9th Sess ., Supp . No. 9 , at 11, U.N. Doc . A/2693 ( 1954 ) [hereinafter 1954 ILC Draft Code] .
47. Id . cmt. to art. 2 ( 11 ).
48. Id . at 11.
80. Nationality jurisdiction exists when the accused is a national of the state .
81. Passive personality jurisdiction exists when the victim is a national of the state .
82. Kenneth C. Randall , UniversalJurisdiction Under InternationalLaw, 66 TEX. L. REv. 785 , 800 ( 1988 ).
83. Lippman , supra note 8, at 24043, 253 - 55 .
84. Prosecutor v. Barbie, Judgment of Oct. 6 , 1983 , Cass. crim., 1984 D.S. Jur . 113, J.C.P. 1983 , II, G, No. 20 , 107 ( 1983 ).
85. Wexler , supra note 18, at 331-33.
86. The Court of Cassation ruled in its October 1983 and January 1984 opinions that the Nuremberg Charter had been incorporated into French law . Id. at 337.
87. Barbie , J.C.P. 1983 , II, G, No. 20 .
88. Wexler , supra note 18, at 339.
89. Id . at 342.
90. Id .
91. Id .
92. Id .
93. Federation Nationale des Deportes et Internes Resistants et Patriotes and Others v . Barbie , 78 I.L.R. 124 , 137 ( 1988 ) (Court of Cassation , Criminal Chamber 1983 - 85 ); see Lippman, supra note 8 , at 258 (citing Barbie).
94. Wexler , supra note 18, at 361.
95. Id . at 322.
96. Id . at 322-25.
97. Id .
98. Prosecutor v. Touvier , 100 I.L.R. 341 , 350 ( 1992 ) (Court of Cassation , Criminal Chamber 1992 ).
99. Id . at 349-50.
100. Id . at 358.
185. Prosecutor v. Mile Msksic , Miroslav Radic, and Veselin Sljivancanin , Case No. IT-95-13-R61 (Apr. 3 , 1996 ), Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, International Criminal Tribunal for the Former Yugoslavia , Trial Chamber.
186. Tadic Judgment , Case No. IT-94-1-T (May 7 , 1997 ).
187. Id .
188. Id .
189. Id .
190. Statute of the International Court ofJustice, June 26, 1945 , 59 Stat. 1055, T.S. No. 993 , 3 Bevans 1179 ( 1945 ).
191. Id . art. 38 ( 1 ), 59 Stat. at 1060 , 3 Bevans 1224.
192. M. Cherif Bassiouni , Crimes Against Humanity: The Needfor a Specialized Convention , 31 COLUM. J. TRANSNAT'L L . 457 ( 1994 ).
193. Convention on Statutory Limitations, supra note 27 , art. 1 ( b ).
194. ICTY Statute, supra note 6.
195. Tadic Decision onJurisdiction , IT-94 - I-AR72 (Oct. 2 , 1995 ).
206. See 1954 ILC Draft Code , supra note 46.
207. Federation Nationale des Deportes et Internes Resistants et Patriotes and Others v . Barbie , 78 I.L.R. 124 , 137 ( 1988 ) (Court of Cassation , Criminal Chamber 1983 - 85 ); Prosecutor v . Touvier , 100 I.L.R. 341 , 358 ( 1992 ) (Court of Cassation , Criminal Chamber 1992 ).
208. 1991 ILCReport, supranote 50 ; Report of the InternationalLaw Commission on the Work of Its Forty-Sixth Session , U.N. GAOR , 49th Sess., Supp . No. 10, U.N. Doc . A/49/10 ( 1994 ) [hereinafter 1994 ILC Report]; Secretary-GeneralReport , supra note 127.
209. Tadic Judgment , Case No. IT-94-1-T (May 7 , 1997 ); Prosecutor v . Dragan Nikolic, Case No. IT-94-2-R61 ( 1995 ), Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, International Criminal Tribunal for the Former Yugoslavia , Trial Chamber.
210. 1996 ILC Report, supra note 56.
211. 1954 ILC Draft Code , supra note 46.
212. 1991 ILC Report, supranote 50; 1994 ILC Report, supranote 208; Secretary-General Report, supra note 127.
213. Tadic Decision on Jurisdiction, Case No . IT-94 -I-AR92.
214. For a comprehensive history of the drafting of and negotiations on the draft ICC Statute, see Christopher Keith Hall, The First Two Sessions of the UN Preparatory Committee on the Establishment of an InternationalCriminal Court, 91 AM . J. INT'L L . 177 ( 1997 ) [hereinafter Hall 1]; Christopher Keith Hall, The Third andFourthSessions of the UN PreparatoryCommittee on the Establishmentof an InternationalCriminalCourt, 92 AM . J. INT'L L . 124 ( 1998 ) [hereinafter Hall 2]; and Christopher Keith Hall, The Fifth Session of the UN PreparatoryCommittee on the Establishmentof an InternationalCriminal Court, 92 AM . J. INT'L L . 331 ( 1998 ) [hereinafter Hall 3].
215. G.A. Res . 47 /33, U.N. GAOR , 47th Sess., U.N. Doc . A/RES/47/33 ( 1992 ).
216. 1994 ILC Report, supra note 208.
217. Id . art. 20 ( d ).
218. G.A. Res . 49 /53, U.N. GAOR , 49th Sess., Agenda Item 137, U.N. Doc . A/ RES/49/53 ( 1994 ).
219. Report of the Ad Hoc Committee on the Establishmentof an International Criminal Court , U.N. GAOR , 50th Sess., Supp . No. 22 , 77 - 79 , U.N. Doc . A/50/22 ( 1995 ).
220. Id .
221. Report of the PreparatoiyCommittee on the Establishmentof anInternationalCriminal Court , U.N. GAOR , 51st Sess., Supp. No. 22A , Vol. 2 , 65 - 70 , U.N. Doc . A/51/22 ( 1996 ).
225. Decisions Taken by the Preparatory Committee at Its Session Held from 11 to 21 February 1997 , Annex I : Report of the Working Group on the Definition of Crimes , U.N. Doc . A/AC.249/1997/L.5, at 4 ( 1997 ).
226. Id . at 5.
227. The Zutphen session, convened by the Chairman of the Preparatory Committee, Adrian Bos, and attended by the members of the Bureau, Chairs of different Working Groups, Coordinators and the Secretariat, did not make substantive changes but only made slight editorial modifications "for the purposes of consistency or of reflecting discussions in the Preparatory Committee." Report of the Inter-SessionalMeeting From 19 to 30January1998 in Zutphen, The Netherlands , U.N. Doc . A/AC.249/1998/L.13, at 8- 9 ( 1998 ).
228. Id . at 33.
229. Draft Statute for an International Criminal Court , U.N. Doc . A/Conf.183/2/ Add.1 ( 1998 ).
230. G.A. Res . 52 /160, U.N. GAOR , 52nd Sess., U.N. Doc . A/52/160 ( 1997 ).
231. Id .
242. Id .
243. Id .
244. Id .
245. Id .
246. Id .
247. The text of crimes against humanity submitted to the Committee of the Whole is contained in Article 5: Crimes Within the Jurisdiction of the Court. COMMITTEE OF THE WHOLE , United NationsDiplomatic Conference of Plenipotentiarieson the Establishment of an InternationalCriminal Court , art. 5, U.N. Doc . A/Conf.183/C.1/L.44 ( 1992 ).
248. See THE SOUTH ASIAN HUMAN RIGHTS DOCUMENTATION CENTER, THE NORTH AMERICAN RE-WRITE CUSTOMARY INTERNATIONAL LAW: AN "AND" BY ANY OTHER NAME Is STILL AN "AND" (July 2, 1998 ) ( on file with the FordhamInternationalLawJournal) [hereinafter SAHRDC Paper]; HUMAN RIGHTS WATCH, COMMENTS ON THE CANADIAN PROPO-